29 May 2016

We're usually completely blind to who our neighbours will be, or who we'll be renting property from, until we've moved into a house or apartment or business premises. And by then, it's too late too avoid the neighbours or landlord from hell.

There are 4 key legal steps you need to take to survive and thrive in a neighbour or landlord dispute over your property, regardless of whether you're an owner or renter.

Step One - Don't Escalate Too Quickly

As tempting as it might be, don't escalate the dispute by involving lawyers too quickly. This is the opposite of what I'd suggest in some other legal dispute situations like being charged with an offence or being sued. The reason to control escalation to the greatest degree possible is that most property dispute cases can be resolved with a little common sense. This isn't the case with lots of other types of disputes.

Embrace the "good neighbour principle" that anything you do on your property shouldn't harm your neighbour/landlord and his property, and insist upon your neighbour/landlord according you the same respect. Don't cut down your half of a tree on your property if it will kill the remaining half tree on your neighbour's property. Don't build a wall that will completely block all light to your neighbour's property. Don't aim an exhaust chimney directly at your neighbour. Don't make so much noise, at all times of the day and night, so as to drive your neighbour crazy. Don't make massive modifications to your rented premises without talking first to your landlord about the changes.

You might need to do some of these things in moderation in order to make proper use of your property, but showing the greatest restraint possible, and talking to your neighbour/landlord first, is most likely to avoid you being dragged to court and incurring legal expenses.

All these property owner/renter actions I've just mentioned have ultimately wound up in court. Some have spawned many court cases. But at the end of the day, judges have usually granted judgment in favour of the reasonable party and against the unreasonable party.

Step Two - Hire a Lawyer Instead of Self-Help Revenge

If your neighbour or landlord refuses to act reasonably, after you've tried to reason with him or her, then it's time to talk to a lawyer so you can better know your rights, and perhaps have your lawyer talk to your neighbour or landlord's lawyer.

This is NOT the time to engage in self-help, and get revenge against the unreasonable person. You won't be doing yourself any favours if the matter later winds up in court through your acts of self-help revenge - even if they feel very good at the time.

So cutting down your neighbour's tree after he cut down your tree, flooding your neighbour after she flooded you, breaking into your rented premises after your landlord locked out all need to be resisted. Instead, hire a lawyer and sort it out through negotiation or in court. That's the only way to get a permanent fix.

Your lawyer will tell you what you can permissibly do in the interim. The other way of self-help is a path to police involvement. And trust me, you don't want that. I've seen it often enough, and it ain't pretty.

Step 3 - Document, Document, Document

Property disputes are a whole lot more tangible than other kinds of disputes. You can touch property. You can feel the earth being fought over beneath your feet. Touch the wall that your neighbour should never have built across your driveway. Smell the absence of that tree that should have never been cut down. Finger the padlock that should have never been placed on the front door of your business.

As a result there are usually lots of documents and photos that you can create or gather to demonstrate to a court why you're in the right and your neighbour or landlord is in the wrong. Step 3 involves painstaking gathering of evidence. Avoid she said/she said competitions of credibility, and focus on absolute truths that you can prove through hard evidence.

Take lots of photos - preferably before and after the start of the dispute. Pull out a survey or commission a new property boundary survey. Dust off those land title or lease documents, or have your lawyer conduct a diligent title search for you. Make some videos. Write out an extremely detailed chronology of events and give it to your lawyer - the more dates, names, places and details, the better. Collect witness statements. Your lawyer will probably want to draft up a sworn affidavit for you for later presentation to a court, attaching lots of exhibits, and will need lots of provable detail to create a compelling affidavit.

STEP FOUR - Figure Out Your End Game Early

Think carefully early on in the dispute about your end game and what you will settle for out of the property dispute. Avoid demanding monetary damages if you're in court - they'll trap you into a lengthy trial of proving who owes who what, and how much is owed. You could be stuck in court for years, and the legal fees could outweigh any damages that are ever awarded. And then you might find collecting those damages to be impossible.

Ask yourself: what will best restore me to the position I should have been in? New trees? An adjusted property line? A quieter neighbour? A landlord who leaves me alone to run my business? Then work with your lawyer to figure out what legal means will get you to that point of resolution.

Your life working with a barrister can be productive or it can be miserable. In this post I'll explain to you the four steps you need to follow to make the relationship the former and not the latter.

It doesn't matter if you're being dragged kicking and screaming to court in response to a criminal charge, small claims or Superior Court of Justice civil suit against you or your business, are trapped in family law proceedings, or maybe you need to initiate a court application to clarify your rights over real estate, or the interpretation of a will, or recover money from someone. Unless you're planning to do that case yourself - and in over two decades of practice I usually don't see good outcomes for those who try the DIY route - you'll be stuck working with a barrister.

In Canada, barristers are simply lawyers who go to court. Unlike in England, they're part of the same law societies as solicitors. While we've never worn white horsehair wigs - I've heard they were too difficult to obtain in colonial times - we do sometimes wear black robes that have a habit of getting caught on door handles as we attempt to swish imperiously in and out of rooms.

Step One - Be Sure You Need a Barrister

Clarify at the start of the relationship why you need the barrister. Many people come to see me thinking they might benefit from a lawyer, but are not quite sure what the lawyer can do for them. I always tell my clients that a little legal advice can be a bargain. But going to court unless you absolutely have to go is never a bargain.

So before you contact a barrister, consider why you need one. And then when you do speak to the barrister, explore upfront exactly how he or she might be able to help you.

Don't accept vague answers from a barrister about his or her plans to help you. Instead, push the barrister to explain step by step what his or her plan is for you.

You might not really need a barrister. And it could be worth a free five minute phone call to find that out or a one hour paid consultation with a lawyer. Even if you pay up front for a bit of advice on your matter, possibly including asking the barrister to write you a formal legal opinion about the likely prospects of success of your case in court, it will still be way, way cheaper than starting to spend money on court fees once litigation has started.

You might need a psychologist or family therapist or credit counsellor or accountant more than a barrister. If you've got a neighbour dispute, you should weigh the expense of a real estate agent versus a barrister. Family counsellors for marriage troubles are definitely cheaper than family lawyers. I'm not suggesting other professionals can definitely fix your problems, but they might provide a more graceful exit to them than would litigation.

However, sometimes going to court will be the only option. Like if you've been charged with a criminal offence. Or if you are being sued by someone else. Or if you have a tax dispute with the government.

Step Two - Clarify the True Cost of the Barrister

Demand up front from the barrister a fair assessment of fees for your matter, and in turn be prepared and realistic about your ability to fund those fees. Push the barrister for a block fee if possible, even if it's only for specific stages of a case, as that will best control and predict your costs.

If fees need to be hourly, make the barrister explain why. And don't make the mistake of thinking a lower hourly rate will lead to a lower cost of the case, since a cheaper by the hour barrister might have less experience, and consequently wind up spending more time on your case.

Also don't be shocked by barrister fees. Many solicitors actually take home more money than barristers, but people usually don't complain about their seemingly "smaller" fees which are based on volume and where much of the work is being done by trained clerks. By comparison, barristers will be doing most of your work themselves, and court cases tend to suck up an enormous amount of lawyer time as compared to a simple real estate transaction which a lawyer might only personally spends one or two hours working on.

If you can't afford the fees, tell that to the barrister upfront. There may be less expensive ways of proceeding available, even if they're not the preferred ways of proceeding. Don't mislead yourself about being able to afford a potentially very costly case because you think it will settle. You always need to plan for the worst case scenario when it comes to litigation.

Regardless of whether the fees are block or hourly, don't let the barrister be vague about how extras like "disbursements" can drive up those fees. Establish at the start if there are likely to be significant disbursements like transcript costs, expert witness fees, or printing and binding fees.

A rule of thumb is that criminal cases tend to be cheaper than civil cases - even small claims - because they simply take up less barrister in-court and preparation time, settle at earlier stages, and involve fewer pre-trial proceedings. You'll usually be able to get a block fee from a barrister for a criminal case, but civil cases will usually be hourly because they're less predictable.

Costs of appeals for civil or criminal cases depend upon the complexity of the trial; a four week trial with 500 exhibits is going to cost more to appeal than a one day trail with five exhibits. But you may be able to get a block fee quote for an appeal - all the appeals I take on are done as block fees.

Step Three - Work Collaboratively with the Barrister

Press the barrister from the start of the relationship on what he or she needs from you. You giving the barrister appropriate help from the get go will make the relationship far more successful and cheaper for you.

Does the barrister want a factual chronology? A list of witnesses together with their addresses and phone numbers? Copies of possible court exhibits, including photos? You won't be able to anticipate all barrister needs, so ask. If you're having trouble getting direct answers on needs from the barrister, press the barrister's law clerks for what kinds of things they usually collect for cases. You need to work collaboratively with the barrister.

Your physical health is a collaborative endeavour with your family doctor. Same with you legal health.

Don't make the mistake of thinking that your only obligation in working with a barrister is paying the bills. Really your barrister is more of an interpreter or negotiator or intermediary between you and the court; your barrister isn't your replacement or doppelgänger. Making your barrister relationship the most result and cost effective possible requires your full participation in the case.

Step Four - Continuously Evaluate What Would be an Acceptable End Result

Evaluate in advance of retaining the barrister, and continuously reevaluate during the course of your barrister-client relationship, what would amount to an acceptable court result or end game for you. Don't enter the relationship with vague notions of "total victory" as even if your barrister gets you to that point, you might might be capable to recognizing it after you've been in the court process for a while. So be realistic in your court outcome expectations, and continually examine the options you're presented with for getting off the litigation treadmill.

In criminal cases, an acceptable result might be easier to evaluate than for civil cases. If you don't have a criminal record, and want to avoid one, a good result might be diversion or receiving a discharge, in addition to dropping of charges or an acquittal. If you do have a criminal record, but need to avoid going to jail so you can keep your job, then staying out of jail through a community based house arrest sentence might be acceptable.

I'm not saying you can't aim higher than the minimum acceptable result, but just that you need to consider your options from the start. It might take you weeks of careful reflection to figure out what result you really want. You'll have the necessary time to reflect if you consider things from day one of the barrister-client process. You might only have 24 hours to decide on a deal once a firm offer is made. If you really didn't "do it" in a criminal case, then make clear up front to your barrister that the only acceptable result to you is full exoneration. That way he won't waste his time trying to negotiate a deal for you, but rather will first try to convince the Crown the drop the charges, and second will simply prepare to take your case to trial.

In civil cases, an acceptable result might be more intangible. One result to consider is that you don't want to spend more on barrister fees than you save in settlement payments. As much as you don't want to give the other side a penny of your hard earned money, a good barrister will be frank with you about when your legal costs will outweigh your potential civil windfall.

For instance, if hire a lawyer to sue someone in small claims court for $5000 in damages, get a judgment for $4000, get $750 in court costs, and pay $5000 in legal fees, and you'll be $250 poorer than when you started. But get a judgment for $20,000 with $3000 in court costs, and you'll be $18,000 ahead on that same $5000 amount of legal fees. So for civil matters, you need to be really careful in evaluating how much your case is worth - regardless of whether you're the plaintiff or defendant.

Anytime legal fees could outstrip case worth, that is a huge red flag. People often get sucked into spending stupid amounts of money on barristers because the expense doesn't seem too bad to start with, they're overly optimistic about how quickly they can achieve victory, and they don't press their barrister sufficiently for the worst case scenario.

But there are things worth fighting for, even if fees climb. For the control and survival of your business. To be able to continue to practice your profession. But just be realistic about what you can live with, based on asking your barrister about the likely outcomes. If your barrister refuses to discuss this with you, find another barrister. But because your barrister may have hundreds of clients, don't expect him to be able to pry out of you what you really want, and to read your mind, if you don't tell him.

The longer you're in business, the greater the chances you'll be sued by someone who is disgruntled. This might be a disgruntled former employee, a disgruntled client, a disgruntled competitor, or even a disgruntled partner.If you've survived in business for more than a few months, you've hopefully moved past dwelling on the possibles, and only deal with the realities. So while all those people could sue you, fortunately few ever will. It can be very hard to predict from what quarter the litigation will come, but there are a few important proactive mitigation steps you can take to protect your business and yourself from such suits.1. Incorporate and Buy Sufficient InsuranceIncorporation and insurance aren't either or propositions, but they are most effective when used in combination. For really small businesses, the cost and hassle of incorporation (like preparing financial statements and filing corporate tax returns) may not be worth the benefit. Insurance has its limitations as well, but for professionals who can't shield themselves from legal liability through a corporate veil adequate insurance is an absolute necessity.Be aware that incorporation is not an absolute shield to personal liability, especially when you have a "closely held" corporation with only a couple of owners and directors as is the case for many small businesses. You still might get sued personally, and court decisions are inconsistent on whether individuals should be let off the hook for actions or debts of corporations. The Income Tax Act can be especially onerous in pursuing directors and owners for tax corporate debts. But having a corporation operate as an intermediary between you and your customers and suppliers is usually a good thing once your business gets to a sufficient size.There's a tendency amongst both businesses and professionals to be underinsured, as people don't count on the high cost of legal defence eroding damages policy limits. Get a $1 million policy, spend $500,000 on defence costs, and you don't have a lot of insurance left. So buy excess coverage where available and affordable.2. Carefully Document Your Business Relationships with Defencible WordingMany business people think themselves smart by committing all relationships to writing through employment contracts, purchase contracts, and partnership agreements. But if you draft abusive and vague agreements, they may be worse than not having anything at all in writing because those unfair agreements can turn a court against the party who drew up the lopsided written document.Employment contracts that effectively prohibit former employees from working anywhere in the same field for years locally or nationally, purchase contracts that absolve the vendor of all liability for products or services sold, and partnership agreements that lock partners into a marriage with no escape until death can all be worse than no written agreement at all as courts may unpredictably strike down various agreement clauses as unconscionable, while leaving other clauses in place that create a two legged table that tips over but can't be predicted where it will fall.Instead, get a lawyer's help drafting something that will later stand up in court. Taking a "we'll leave it to the courts to sort it out" attitude, be it lawyer or business owner who is drafting the document, will only cost the business in the end with litigation legal fees that will be many times greater than the fees charged to draft the original contract. I'm not saying an agreement can't tilt slightly in your favour and still be upheld by a court. But there is an indistinct line of unreasonableness that can't be crossed, and which you must carefully consider.3. Defuse Business Conflicts Prior to their Escalation to LitigationWhile keeping employees, clients, suppliers and partners happy - within reason - might seem self-evident in avoiding litigation, many businesses violate this rule, and later pay the price in litigation costs. Taking the employee/client/supplier/partner is always right approach will not solve all your problems; I defend businesses against what can only be called frivolous and vexatious lawsuits that should have never been initiated, even after my clients have attempted reasonable accommodation. But at least some suits will melt away before they are filed if sufficient communication and moderate appeasement is offered to the other party. This will usually save you money in the long run, especially if you couple those measures with ensuring that complaining party signs an informed release of liability in your favour. However, simply giving in to the other party without getting anything in your return might not be in the best interests of your business.4. File a Timely Defence, Consider Early Settlement, move to Strike Parties, move for Security for Costs, or move for Summary Judgment when you Do Get SuedIf and when you do get sued, in Ontario you usually only have a short twenty days to draft, serve on the opposing party, and file with the court your defence! That time limit can be extended through various means, but you really need to contact a lawyer immediately upon receiving a claim so that you can understand your rights and the right of your business.Even if you're only getting sued in Small Claims Court for $25,000 or less, I generally don't recommend people represent themselves because of the complexities involved. If you win, you're able to claim legal costs of up to 15% of the value of the claim (under Ontario rules), so you can recoup some legal fees.It's clearly pointless to spend more on legal defence fees than the value of the claim, but it's still worth consulting a lawyer to determine likely fees and whether it could be advisable to self-represent. If being sued in Superior Court outside of the Small Claims realm the Rules in Ontario require all corporations to be represented by a lawyer except with explicit permission of the Court.You need not feel that you're trapped into some multi-year court process if you move proactively when you do get sued to consider one of the following four options.a. Consider Early Settlement - if settlement costs will be way cheaper than legal fees, consider it a cost of doing business to buy your business out of the court case, even if you think you're in the right, so long as you get a solid release of liability, and aren't facing similar claims from others where there would be value in setting a court precedent.b. Move to Strike Parties - if you or your business have been named as peripheral parties in a multi-party lawsuit, or you've been named personally as a party that should only have been brought against your corporation, discuss with your lawyer whether a motion to strike you or your business as parties from the suit might work. Motions are cheaper to bring than being subjected to a trial, and if a motion can effectively kill off a case for your business, or at least protect you personally from a judgment, then it might be worth bringing.c. Move for Security for Costs - if you or your business are being sued by an organization or individual with no assets in Ontario (or whatever province the lawsuit has been initiated in), you might be able to move for "security for costs." This involves the plaintiff being compelled to post a bond with the court which could compensate you or other parties for some of your legal fees should the plaintiff have costs awarded against it. This might stop a lawsuit in its tracks if the plaintiff is unable or unwilling to deposit the funds with the court.d. Move for Summary Judgment - it's recently become quite trendy (after the stamp of approval from the Supreme Court of Canada) to successfully move for "summary judgment" as either plaintiff or defendant in order to shorten the trial process. Such motions can still take up several days of court time, and have specific criteria for success, so you should carefully discuss costs and prospects with your lawyer before such a motion is undertaken, but if there is a reasonable chance of success it might significantly shorten your time and costs in court.